An order rejecting an application under section 5 of the Limitation Act 1963 is also an order passed in appeal, and a second appeal would lie against such an order. The preparation of a decree for such orders is necessary to facilitate the filing and hearing of second appeals.

JUDGMENT :

Hon'ble Rajan Roy, J.

1. By means of this petition under Article 227 of the Constitution of India the petitioner has challenged an order dated 24.4.2019 passed by the Additional District Judge (Court No.4)/Special Judge (E.C. Act), Sitapur, dismissing the application of the petitioner under section 5 of the Limitation Act 1963 (hereinafter referred as 'Act 1963') which was filed alongwith the appeal filed by the petitioners against the judgment and decree passed in O.S. No. 141 of 1999 allowing the suit of the private opposite parties herein. The application under section 5 was registered as Civil Misc. Case No.91 of 2014 and the same has been dismissed by the Appellate Court.

2. A question arose during the course of hearing as to the maintainability of this petition and whether a second appeal under section 100 C.P.C. would not lie against the impugned judgment ? In response, the learned counsel for the petitioner submitted that the order which has been impugned herein does not fall within the definition of decree under section 2(2) of the Code of Civil Procedure Code 1908, as it does not conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the appeal arising out of the suit, instead it only rejects the application under section 5 of the Limitation Act 1963 which was registered as a separate miscellaneous case. As no decree of such an order is prepared, a second appeal under section 100 C.P.C. will not lie as it lies against appellate decrees.

3. Learned counsel for the petitioner relied upon a decision of the Supreme Court in the case of Ratan Singh v. Vijai Singh and others, AIR 2001 SC 279 in support of his contention.

4. At first blush the submission of the petitioners' counsel appeared to be quite attractive, especially in view of the law laid down by the Supreme Court in the case of Ratan Singh (supra) wherein, the provision contained in section 2(2), C.P.C., defining a decree, had been considered and it was held that an order dismissing an application under section 5 of the Act 1963 would not be a decree and that the order rejecting the memorandum of appeal consequent to rejection of the application under section 5 of the Act 1963 was merely an incidental order. In the said decision the Supreme Court approved the Full Bench decision of the Calcutta High Court in Mamooda Khateen & ors. V. Benian Bibi & ors., AIR 1976 Calcutta 415. The Supreme Court approved the reasoning of the Full Bench that when an appeal is barred by limitation, it cannot be admitted at all until the application under section 5 of the Act 1963 is allowed and until then the appeal, even if filed, will remain in limbo. If the application is dismissed, the appeal becomes otiose. Approving the said view, the Supreme Court disapproved the contrary view taken by other High Courts. The Privy Council decision in Nagendra Nath Dey & anr. V. Suresh Chandra Dey & anr., AIR 1932 PC 165, was also considered in Ratan Singh (supra), but it was observed that the said decision does not help in the context of the case before it, as, it related to the scope and interpretation of Article 182 of the old Limitation Act and in this regard it noticed serious departure made by the Parliament in the existing Limitation Act.

5. However, this court finds that in a subsequent decision in the case of Shyam Sunder Sharma v. Pannna Lal Jaiswal & Ors., AIR 2005 SC 226, a three Judge Bench of the Supreme Court did not approve of the earlier view taken in the case of Ratan Singh (supra) and it held that an order passed on an application under section 5 of the Act 1963 rejecting the same is nevertheless an order passed in appeal. It disapproved the Full Bench decision of the Calcutta High Court in Mamooda Khateen & ors. (supra) and approved another Full Bench decision of the Kerala High Court in Thambi v. Mathew, AIR 1988 Ker. 48, wherein it was held that an appeal presented out of time was nevertheless an appeal in the eyes